Tuesday, 18 August 2015

Conveyancers should be alert to the
Construction, Design and Management Regulations 2015 (became law on 6th
April of 2015) when considering recent alterations to both freehold and leasehold
property.

If your client owns, uses or
manages a building and undertake maintenance or minor building work associated
with the business premises, your client has a legal obligation to ensure that
all work is carried out safely without damaging anyone’s health. The law covers
the all aspects of the building project from start to finish such as how it is
planned, organised, managed, project time-scales and phases, the contractor, the
designer, welfare of the workers and others on site and health and safety
record keeping.

It’s a piece of legislation that
uses good design and planning to reduce the number of accidents on site. The
latest update means that, for the first time, regulations will apply to
construction work commissioned by home-owners. Of the 43 fatalities on
construction sites last year, three-quarters were on smaller sites, so the
change is being implemented to recognise that the risk is not only on larger
sites.

If regulations are not adhered
to, construction work may have to be stopped, financial charges may be incurred
if the HSE has to spend time resolving the issue. For serious breaches your
client could be prosecuted.

From a conveyancing perspective
the sale of property could be affected if there is any renovation or other work
carried out by a builder who does not comply with the rules.

Under the new rules all builders,
whatever their size, working in the domestic sector will have to create a
construction phase safety plan for all building projects and all domestic
projects will have to meet the same basic standards for the provision of
welfare facilities as commercial projects.

For the domestic residential
market this means that any construction projects finishing after the 6th April
need to have a ‘handover pack’ including ‘built drawings or specifications of
components that have been installed.

The responsibility of the home-owner to be clear on who is responsible for site health and safety, and chase the relevant documents at the end of the project.

Clients should be aware that
their exposure to claims in negligence has potentially been raised as a result
of these Regulations. In many cases
breach of statutory duty is no longer a cause of action itself (Enterprise and
Regulatory Reform Act s69), however statutory duties may still influence the
existence of a duty (or the reasonableness of behaviour) in negligence claims.
The imposition of a number of positive duties via these Regulations may result
in a higher expectation of ‘reasonableness’ in the common law context and may
therefore lead to personal injury claims against domestic clients that would
not have arisen in the past

Practical Implications

If acting for a seller then you
should be alert to building works which have commenced but are in still in progress
or which have finished after 6th April 2015 and to ask you client to
provide evidence of compliance with these regulations. You should be ready to receive and respond
to a request for a health and safety pack.

If acting for a purchaser then an
enquiry along these lines about any recent works should be raised especially if
purchasing a new build property. Equally
those who manage a leasehold property should also be asked for these details if
recent works have been carried out to a block of flats, for example. Perhaps the LE1 form should be amended to
include such question.

In the case of a multi-let
building where the landlord retains repairing obligations in respect of parts
of the building it may be appropriate to check that the landlord has been given
the health and safety file on completion of the tenant’s project. Landlord’s
when giving consent for works under a lease should make a condition of a
license to require the tenant to produce the health and safety pack.

Sorry but yet another regulatory
obligation to add to an ever growing list for the underpaid and over worked
conveyancer!

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk